The LUO’s Stop Racial Profiling Subcommittee made the following submissions (also available for download) to the Toronto Police Service Board April 24, 2014.
The Toronto Police Service engaged in the general intelligence-gathering practice known as “carding” for many years without any policy direction from the Board. This practice was a systematic violation of the rights of people in our communities, and especially of racialized youth, and it undermined the public’s trust and confidence in the police service and thereby impaired public safety.
The Law Union of Ontario welcomes the considerable work done by the Board to rein in this practice. The Chair’s report to the Board concerning the proposed new Community Contacts Policy indicates that the policy now seeks to take a rights-based approach to how police interact with members of the public. This is the correct and necessary approach.
However, in measuring the proposed draft policy against this approach, it is apparent that some further modifications will be required to ensure a full stop to the systematic police violation of people’s Charter rights, human rights, and privacy rights through the practice of carding. The policy still allows the police to arbitrarily stop of members of the public as part of a general intelligence-collection exercise in certain circumstances, notwithstanding that the Board’s intention appears to be to put an end to this kind of conduct.
Accordingly, the Law Union submits that the Board should approve the proposed Community Contacts Policy subject to certain further modifications, as described in these submissions.
1. Contacts in the context of a specific investigation
Articles 4(a)(i) and 4(a)(ii) of the proposed Community Contacts policy justify the initiation or recording of contacts for the purposes of: (i) investigating a specific offence, or (ii) preventing a specific offence.
The policy should also require that there be an honest belief on the part of officers initiating contacts that there is some nexus or connection between the person contacted and the specific offence, in order to reduce the potential for misinterpretation or abuse of the policy
Under the present practise of carding, officers have often falsely advised persons that they are investigating a break-and-enter or some other offence in the community, as a pretense for stopping and carding a person. Some officers expand on this ruse by advising a reluctant individual that they “fit the description “of the perpetrator. The use of this kind of tactic (and other tactics) can psychologically compel the person, particularly a young or marginalized person, to comply with the carding process, even if they are aware they have the right not to do so and do not wish to participate.
RECOMMENDATION No. 1
That Articles 4(a)(i) and 4(a)(ii) be amended to read as follows:
(i) Investigating a specific offence, where the officer has an honest belief that the person approached has some connection to the offence whether as a suspect or as someone who has helpful information with respect to the offence; and
(ii) Preventing a specific offence, where the officer has an honest belief that the person approached has some connection to the offence whether as a suspect or as someone who has helpful information with respect to the offence;
2. Contacts in relation to “an identifiable, systemic criminal problem.”
Article 4(a)(iv) of the proposed policy provides that:
a. Valid public safety purposes justifying the initiation or recording of Contacts are:
iv. Collecting intelligence relating directly to an identifiable, systemic, criminal problem and pursuant to a Service or Division – approved initiative.
This purpose seems to be in conflict with article 4(b)(i), which states:
b. Purposes that do not justify the initiation, continuation or recording of Contacts are:
i. Gathering personal information for use in unspecified future investigation [emphasis added].
Article 4(a)(iv) is also inconsistent with the overall rights-based approach articulated by the Board.
Toronto currently could be said to suffer from several “identifiable, systemic criminal problems” which have become the subject of initiatives approved by the Toronto Police Service. Some examples are guns, gangs, drugs and youthful offender delinquency. TAVIS is an example of an existing police initiative specifically directed at violence in our communities. The criminal problems targeted by such initiatives can be said to relate to unspecified future investigations.
The Toronto Police Service has previously attempted to justify the practice of carding or street checks on precisely this kind of intelligence-gathering rationale. Nevertheless, the Board has never sought or received any empirical evidence that carding and the collection of irrelevant personal information is an effective means of addressing these systemic criminal problems. On the contrary, it is apparent that the practice of carding has increased risks to public safety by undermining public confidence in the police.
There are systemic criminal problems in our communities. However, carding is not the solution to those problems, and it may actually make these communities more difficult to police by alienating the members of these communities.
As worded, article 4(a)(iv) would allow the Toronto Police Service to continue the existing practice of carding by simply declaring that they are doing so in relation to an “identifiable, systemic criminal problem.” It would allow an exception to the prohibition against arbitrary stops of community members for general or unspecified investigation purposes. It would allow police to continue to arbitrarily stop and harass members of the community and violate their Charter rights, human rights, and privacy rights, even though the Board has declared that these kinds of practices are unacceptable and that it will be implementing a rights-based policy. This would continue the social damage done to communities, and further erode public trust and confidence in the police service. This does not appear to be what the Board has intended in its policy, but that is how the policy could be interpreted and applied.
In order to ensure the policy is consistent with the rights-based approach articulated by the Board, and to ensure that Contacts are not in fact used in any “unspecified future investigation,” paragraph 4(a)(iv) should be deleted. Paragraphs 4(a)(i) and 4(a)(ii) are sufficient to allow the initiation or recording of Contacts in the context of a specific offence or investigation.
RECOMMENDATION No. 2
That Article 4(a)(iv) be deleted from the Policy.
3. Contacts in the context of ensuring a community member is not at risk
Article 4(a)(iii) states that the initiation or recording of Contacts is justified for the purpose of “ensuring the community member who is the subject of the Contact is not at risk”.
This additional provision is both unnecessary and overbroad, and may allow the continuation of practices that are inconsistent with the Charter and the Human Rights Code.
Article 4(a)(iii) creates an overbroad category of individuals who may be subject to such stops and does not provide appropriate guidance to police officers as to what level of risk is needed to approach an individual for the purposes of initiating and recording his or her personal information. The Law Union does not question the Toronto Police Service’s duty to share information with community residents who might be at risk and/or targeted as victims of crime. Indeed, the Law Union believes that it is the duty of the police to share information with community residents about their activities, in particular to individual community members who might be potential victims of criminal activity.
The Law Union, however, questions the need to collect and retain personal information related to such interactions when they are not related to the prevention of or investigation into a specific offence. This kind of provision could allow such stops to be used as a pretext for carding, and may discourage actual persons at risk from seeking the assistance of the police.
Paragraphs 4(a)(i) and (ii), with the modifications recommended above, already allow police officers to continue to approach individuals who may be at risk as victims of criminal activity. Additionally, individual police officers may disseminate information related to specific investigations to individuals in community without recording and retaining individual personal information through a number of methods that do not infringe upon individual human rights and fundamental freedoms, including community meetings.
RECOMMENDATION No. 3
That Article 4(a)(iii) be deleted from the Policy.
4. Issuance of Community/Officer Contact Receipts
As long as any form of carding will continue, ensuring effective monitoring of police practices and public accountability require the issuance of Community/Officer Contact Receipts after each community contact.
Upon the recommendation of the Streetchecks Sub-Committee, the Board directed the Chief to provide a receipt after each community contact. The Law Union is unaware of any Board direction to the Chief to abandon this practice.
This practice of providing mutual documentation of community contacts should be continued and codified in the proposed Community Contact Policy.
RECOMMENDATION No. 4:
That paragraph 5(f) be added to the Community Contacts Policy stating:
f. An officer who engages in a community contact will issue a receipt to the individual which includes:
i) the officer’s name, badge number and division; ii) the location, date and time of the contact; iii) the reason for the contact; and iv) a copy of any Community Safety Note generated by the Contact.
5. Informing community members of their rights
Paragraph 5(c) provides that the Chief shall establish procedures to ensure that:
(c) Community members know as much as possible in the circumstances about their right to leave and the reason for the Contact
This provision requires further clarity and specificity to ensure that persons approached are aware of their rights as guaranteed by the Charter of Rights, and of the consequences of agreeing to answer an officer’s questions or not. It should also require affirmation of informed and voluntary consent.
The police are the representatives of the state in the community. Persons approached will continue to include many who are young, racialized and marginalized. The power imbalance between a mature, uniformed and armed officers and such persons is enormous. The policy must recognize this power imbalance and aim to mitigate it in circumstances where the subjects of the Contacts are not legitimately suspected of actual wrongdoing.
RECOMMENDATION No. 5:
That Article 5(c) be reworded to state:
Community members know as much as possible in the circumstances about their right to leave and the reason for the Contact, including by requiring that service members advise every subject of a Contact: (a) that they have the right to refuse to answer questions; (b) that they are free to leave the Contact at any time; and (c) that any personal information that they provide to the service member could be retained in a police intelligence database; and by requiring the service member to ensure the subject’s informed and voluntary consent before proceeding with the Contact.
6. Data retention
The Chair’s April 16, 2014 report to the Board recommends, at item no. 6, that the Chief of Police report within three months on
“the disposition of contact information gathered prior to July 1, 2013 through the former Form 208, otherwise known as ‘Contact Cards,’ that served no public safety purpose as defined in the policy and the procedures.”
Further, the proposed Community Contacts Policy, at article 8(g), states that personal information collected in carding interactions (in Form 208s, Community Safety Notes, etc.) that does not conform to the new policy and procedures (hereinafter “non-conforming legacy data”) should be destroyed.
In order to ensure full compliance with this directive, it is necessary for the Chief to also:
(a) disclose particulars about the manner in which such data was collected and stored, and whether any of the data was ever made accessible to any external entity (such as the RCMP, CBSA or foreign law enforcement agencies);
(b) present a plan for destroying any such data that has been shared with any other Canadian or foreign entity;
(c) establish a procedure for advising every individual whose “non-conforming legacy data” has been shared with any external entity of the particulars of what information has been disclosed about them and to whom.
RECOMMENDATION No. 6
a. That the Board adopt recommendation no. 6 with the following modification:
The Board request the Chief of Police to provide a report within three (3) months on the disposition of contact information gathered prior to July 1, 2013 through the former Form 208, otherwise known as “Contact Cards,” that served no public safety purpose as defined in the policy and the procedures; to include details about whether any of the information was provided to any external entity, and if so to whom, under what circumstances, and whether any of those entities shared the information with any other entity, as part of the report, and also report on the development of a retention and destruction protocol consistent with the policy;
b. That the Board confirm that it will publicly disclose the report referred to in recommendation no. 6 of its report.
c. That the retention and destruction protocol referred to in Article 8(g) include a protocol to promptly: (i) notify personally any individual about whom Form 208 or other Contact data that does not conform to the new policy and procedures (“non-conforming legacy data”) has been disclosed, including notification of what data was shared and with whom; and (ii) take the necessary steps to compel and verify the destruction by any other record holders of non-conforming legacy data.
7. Third-party monitoring and reporting
Given the history of the practice of carding, there is a need for third-party monitoring of the implementation of the policy by the Ontario Human Rights Commission. This should be done in a transparent and accountable manner, which would include reporting to the Board and to the public.
RECOMMENDATION No. 7
a. That the Toronto Police Services Board request the Ontario Human Rights Commission to monitor the Toronto Police Service’s compliance with the Community Contacts Policy for a period of no less than ten (10) years to ensure compliance with the provisions of Ontario’s Human Rights Code; and
b. That any incidents of non-compliance with Community Contacts Policy be included in the Chief’s reports to the Board under article 19 of the policy.
8. Community-driven process
Communities want to be safe. Members of the public want an appropriate police presence in their communities to protect their safety. However, carding has not been the answer to ensuring public safety. Rather, it appears to have caused a great deal of harm to many of the individuals that were carded and to communities as a whole. In many ways, carding has been the antitheses of good community-based policing. There are other better and legal ways to engage in community policing. It is necessary to rethink how the police engage with the diverse communities of Toronto. However, those communities must have a focal role in developing better community policing practices. This is essential if the trust and confidence of the members of these communities is to be restored and if public safety is to be protected.
RECOMMENDATION No. 8 That the diverse communities of Toronto be invited to have a central role in the development of the practices to be developed by the Chief pursuant to the Community Contacts Policy, as well as to participate in developing a broader framework for community-based policing.
Carding, Street Checks, Non Arrest Contacts: The Addario Report and Opinion
1. Executive Summary
“Carding” or “street checks” are part of a police intelligence-gathering scheme in which the constitutional and privacy rights of members of the public (disproportionately racialized youth) are systematically violated for the purpose of amassing their personal information in a police database. It has been suggested by the police service that this scheme is intended to preserve public safety and prevent crime. However, the practice is divisive and it is antithetical to building public trust and confidence in the police because it is unlawful and unethical. This undermines the objective of preserving public safety.
The Law Union hereby submits that the Board should exercise its responsibility to protect the public and:
(a) direct that the practice of stopping and questioning law-abiding persons for general intelligence-gathering purposes cease immediately; and
(b) direct that all of the data that has been collected under this program for general investigation purposes be immediately purged.
Mr. Addario’s opinion and draft policy makes it implicitly clear that he views carding as presently practised to be a violation of the Charter of Rights and Freedoms and the Human Rights Code, as well as s.1(2) of the Police Services Act. Thus, as an interim measure (if the Board will not immediately take the actions described above on a permanent basis) the Law Union of Ontario respectfully asks the Board to direct Chief Blair to immediately suspend the practise of carding or street checks while it deliberates Mr. Addario’s proposal or prepares and implements a new policy. Otherwise, the Board would be condoning the continuation of practices that it knows to be unlawful.
The Law Union of Ontario maintains that the practise of stopping and questioning law abiding individuals for general intelligence-gathering purposes violates the right to life, liberty and security of the person; the right to be free from arbitrary detention; the right to be secure against unreasonable search and seizure; and the right to equality before and under the law and the equal protection and equal benefit of the law without discrimination guaranteed by the Charter. The practice also violates the prohibition of discrimination under the Ontario Human Rights Code (“Code”), Canada’s commitments under the International Convention on the Elimination of all Forms of Racial Discrimination (“ICERD”) and its obligations under the Convention on the Rights of the Child (“CRC”).
The practice of carding and street checks disproportionately singles out Black and Brown children and youth. This is a form of racial profiling that violates the Code’s prohibition of discrimination in the delivery of a service, and it violates a child’s right not to be subjected to arbitrary or unlawful interference with his or her privacy under the CRC. Racial discrimination by law enforcement officers causes significant individual and societal damage. It disproportionately criminalizes certain demographic groups, engenders public mistrust of societal institutions, and generates feelings of humiliation, vulnerability, and loss of dignity, confidence, and self-esteem.
“Community policing” has as its philosophy and rationale the embodiment of police building ties with communities and working closely and in a shared endeavour with members of the communities that they have sworn to serve and protect. Racial profiling, monitoring, over-scrutinizing, and arbitrarily stopping and questioning people and treating them like potential criminals because of the way they look – no matter how politely it is done – not only harms community members but serves to strain community/police relations.
Although Mr. Addario’s opinion makes it implicitly clear that he views carding as presently practised to be a violation of the Charter and the Code, the Law Union respectfully submits that the draft new Community Contact Policy fails to fully satisfy the Toronto Police Service’s obligations flowing from the operation of the Charter and the Code. (more…)
On Monday, November 18, the Toronto Police Services Board will hold a Special Public Meeting on “Police Carding and the Issue of Profiling” and on the Police and Community Engagement Review (PACER) Report.
These are the Law Union’s submissions on the Pacer Report and on carding, available also for download as a PDF.
I – THE PACER REPORT AND THE LEGALITY OF STREET CHECKS
The Police Services’ legitimacy in continuing with the practice of “street checks” or “carding” is dependent on demonstrating two minimum requirements:
That the practice is necessary for legitimate “policing reasons” and is carried out in accordance with the principles prescribed in Section 1 of the Ontario Police Services Act RSO 1990.
That the practice does not violate the Canadian Charter of Rights or the Human Rights Act and is otherwise lawful.
A. LEGITIMATE POLICING REASONS AND SECTION 1 OF THE POLICE SERVICES ACT.
The term “legitimate policing reasons” as relied on the Pacer Report to justify the need for “street checks” or “carding” is amorphous.
The Pacer Report claims that there is a fundamental need for the collection of personal data and other personal information from law abiding persons who have done nothing which would otherwise justify engagement by the police.
There is a clear onus on the Police Service not only to convince the Board that there are compelling bona fide reasons to engage in “street checks” or “carding” but also that such reasons are legitimate and that they do not violate the Charter of Rights or the Ontario Human Rights Act.
From a purely intelligence gathering perspective the police might find it useful to know absolutely everything about everyone at all times. Clearly this Board would not permit such a scenario. The question for the Board therefore is where to draw the line on intelligence gathering operations.
The Law Union of Ontario submits that “street checks” and “carding” as presently conducted and as envisioned by the Pacer Report are neither legitimate nor justifiable.
It is further submitted that the practice of “carding” both at present and as envisioned by the Pacer Repor violate the following principles mandated by section 1 of the Police Services Act:
The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
The need for cooperation between provinces of Police Services and the communities they serve.
The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
B. VIOLATION OF THE CHARTER OF RIGHTS AND FREEDOMS AND THE ONTARIO Human Rights Act.
In our earlier submissions to the Board (November 12, 2012, January 23, April 24, June 20, 2013), the Law Union of Ontario set out our position that the practice of “carding” or “street checks” violates the Charter of Rights, the Ontario Human Rights Act, and provincial and municipal privacy legislation.
The recommendations set out in the Pacer Report fail to alter the fundamental violation of these provisions.
The approaching, stopping, and questioning of persons solely for the purpose of a “street check” in and of itself violates the Charter of Rights in several respects as outlined in our earlier submissions. The fact that such intrusions disproportionately involve male, black, youth as evidenced by reports from Communities and the Toronto Star findings are a clear violation of these safeguards. Street Checks are discriminatory and often race based and as such violate the Ontario Human Rights Act.
While the Pacer Report and its recommendations are an attempt to modify the practice, such do not and cannot legitimize “street checks” because the practice itself is illegitimate.
II. THE LEGAL FOUNDATIONS CITED IN THE PACER REPORT.
At pp 33-37 the Report attempts to justify “street checks” in terms of its legality by citing legal opinions from three unnamed “eminent jurists” all of whom have apparently concluded that there is nothing “legally wrong” with the practice.
To date the Police Service has refused to make these legal opinions available for scrutiny.
Further we are advised that at a private consultation held by the Police Service on October 23, 2013 Mr. Paul Copeland, a member of the Law Union was quoted as being of the view that “street checks” were lawful.
This was simply untrue and Mr. Copeland has so stated in his letter to Chief Blair of October 29, 2013.
Whether or not this assertion apparently made by both Chief Blair and Deputy Chief Sloly was an attempt to mislead and placate persons at the consultation it should be retracted by a letter from Chief Blair to all who were present at the consultation.
It should also be noted that the Law Union of Ontario, whose members are often in daily contact with various communities concerned about “street checks” and have spent considerable time and effort before this Board on the issue, was not invited to the private gathering.
We request that the Board direct Chief Blair to make the three opinions of the “eminent jurists” public in order that there be a further and fairer discussion of the issue of legality.
Ill. THE POLICE SERVICE BOARD LEGAL OPINION
At its January 23, 2013 meeting, the Board appeared to recognize its obligation, pursuant to the Justice Morden Report, to ensure that the policy and practice of “carding” did not violate the Charter or Human Rights legislation. The Board requested the City Solicitor to provide a legal opinion on this issue for the March 27, 2013 meeting. This legal opinion has still not been provided and the delay seems indicative of the Board’s lack of commitment to the public’s concern and apprehension of this issue.
It is unclear whether the City solicitor’s opinion is still in the making or whether the Board has withdrawn its request and is simply going to rely on the opinion of the three lawyers retained by the Police Service.
We request that the Board make its intentions known and advise when the opinion will be completed.
The practice of “carding” or “street checks” is a violation of the Charter of Rights and Freedoms, the Ontario Human Rights Act and privacy legislation both as it presently exists and as envisioned by the Pacer Report. The Board is urged to suspend the practice of “carding” and “street checks” until the Board comes to its own independent conclusion on this issue.
That the Board expedite the completion of the legal opinion as directed at its January 23, 2013 meeting.
IV. ADVISING PERSONS STOPPED THAT THEIR COOPERATION IS VOLUNTARY
Throughout the Pacer Report the authors continually stress that cooperation by persons stopped on a “street check” is purely voluntary on the part of such persons.
Such assertion seems to be restated throughout the Report in order to buttress the Police Services conclusion that “street checks” are lawful.
However, when the Law Union recommended in its April 24, 2013 submission to the Board that as an interim measure the Board direct that when a person is stopped for a “street check” the officers must immediately advise such person that the cooperation is voluntary, such recommendation was not accepted.
When a person, particularly a young person is stopped by an officer for a “street check” or “carding” the power imbalance is overwhelming.
It is difficult to imagine how the Chief or the Board could oppose such a recommendation. The officer is the legal representative of the state and presumably is aware that the cooperation of persons stopped is voluntary. Many individuals stopped are either unaware or unsure of their right not to cooperate. Many more are hesitant to assert their right not to cooperate because they fear reprisal by the officer as we have outlined in our previous submissions.
The only possible reason to oppose our recommendation is the fear that some persons may actually assert their right not to cooperate. Clearly this fear is not a valid reason for law enforcement officers refusing to simply advise persons of what the law is. This is particularly so in light of the Pacer Reports quest for “community engagement” and its repeated reliance on the fact that such cooperation is voluntary.
As an interim measure only the Board should forthwith direct that Chief Blair issue a standing order or directive mandating that officers immediately advise persons stopped for a “street check” that their cooperation is voluntary.
We recommend that the following statement be used by officers:
I am a police officer.
I would like to ask you some questions.
You have the right to refuse to answer my questions and you are free to go.
The Law Union of Ontario is not attempting to discourage persons from cooperating with the police. To the contrary, we subscribe to Sir Robert Peel’s principles on policing citing that public cooperation is essential to effective law enforcement.
To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behavior, and on their ability to secure and maintain public respect.
To recognize always that to secure and maintain the respect and approval of the public means also the securing of willing cooperation of the public in the task of securing observance of laws.
To recognize always that the extent to which the cooperation of the public can be secured diminishes, proportionately, the necessity of the use of physical force and compulsion for achieving police objectives. [Emphasis added]
— Sir Robert Peel: Principles of Policing on the Creation of the London Police Constabulary, 1829.
CHAIR MUKHERJEE MEMORANDUM
The principles and procedures recommended by the Chair are a significant step in the right direction insofar as the Ontario Human Rights Act is concerned. However, the memo fails to address violations of the Canadian Charter of Rightsand Freedoms.
In fact apart from a passing reference to the Police Services Act on page 4, the Charter is not even mentioned in the Chairs memo.
This is a major failing of the memo.
Justice Morden in his June 29, 2012 Report into INDEPENDENT CIVILIAN REVIEW INTO MATTERS RELATING TO THE G-20 SUMMIT cites sections 1.2 and 31(1) finds as follows:
… The purpose of the provision is rather to remind those acting under the Police Services Act of the constant bearing of the Charter and the Human Rights Code on the performance of their duties. This is critically important because the exercise of so many police powers, for example those of arrest, detention and search and seizure engage rights that are protected by the Charter and the Human Rights Code.
That having been said however we make the following preliminary comments:
Recommendation #2 refers to bona fide reasons as a fundamental underpinning for the gathering and retention of “contact information”. We submit that rather than an amorphous categorization, i.e. “bona fide reasons”, the specific reasons or specifications for the collection and retention of information from persons who are simply out and about and have done nothing wrong should be enumerated and spelled out in clear terms.
Recommendations #3 and 5 again refers to the terms “bona fide investigative reasons” which seems to suggest that persons information will only be collected and retained where such information is demonstrably relevant to specific police investigations.
We are confused as to the meaning of these two recommendations. If they only refer to the retention of information they are inadequate. At a minimum, an officer should only approach a person for the purpose of a street check if the officer has an honest and reasonable belief that such person’s information will be demonstrably relevant to a specific, ongoing police investigation.
Over the last year, the Law Union of Ontario has made four submissions to the Toronto Police Services Board explaining why its practice of carding is unlawful. Read and download those submissions below.
1. The Law Union of Ontario remains of the strong view that both the Toronto Police Service policy with respect to “carding” and the manner in which it is carried out violate the Canadian Charter of Rights and Freedoms and the Human Rights Code. […]
7. Given that the Board has had this issue before it for over one year and seems unable to respond to public concern and anger in a timely fashion, we urge the Board to direct Chief Blair to suspend the practice of “carding” until the Board reaches its conclusion with respect to whether the practice violates the Charter and Human Rights legislation.
8. In the event that the Board is unwilling to suspend “carding” until these issues have been resolved we urge the Board to forthwith direct Chief Blair to issue a standing order or directive mandating that all officers caution persons approached for the purpose of 208 carding or street checks, advising such persons that they have the right to refuse to answer questions and are free to go.
The issue is not whether the use of Form 208 and the manner in which it is deployed are necessary in order that the TPS can meet its operational requirements.
The issue is whether such use and deployment are lawful.
The Law Union of Ontario continues to maintain that both Form 208 and the manner in which it is filled out ie, street checks are used, are violations of the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, and municipal and provincial privacy legislation.
Throughout the history of the common law many unlawful investigative stratagems have been used by police officers in free and democratic societies. These stratagems were often carried out under the guise of being necessary due to “operational requirements” to facilitate criminal investigations and prosecutions or intelligence gathering operations.
Some examples of such conduct are:
Using physical or psychological force to obtain confessions or statements.
Unlawful entry on property or buildings without a search warrant or exigent circumstances.
Unlawful wiretap or other interception of communications without judicial authorization.
The unlawful removal and replacement of private property for investigative purposes.
Even prior to the Charter of Rights and Freedoms such conduct was held by Courts to be unlawful requiring a cessation on their use. Under the Charter of Rights such practices have been held to be violations of the supreme law of Canada.
4. The Law Union of Ontario submits that both the design of Form 208 and the manner in which “carding” is deployed are clear violations of both the Charter of Rights and Freedoms and the Human Rights Code.
5. In labeling street checks as form of “community engagement Police claim they are a form of community policing. In reality, street checks are carried out as intelligence gathering of personal information from individuals who are not engaged in criminal or antisocial behavior and who are conducting themselves in a law abiding manner.
6. Many individuals, particularly youths, are unaware that they have the right to walk away. They feel intimidated and obliged to respond, often arising out of the inherent power difference between the police and youths. Even if individuals are aware of this right they often fear reprisal of one form or another if they attempt to exercise their right.
3. The design and use of Form 208 and in particular the manner in which the practice of “Carding” is deployed are both clear violations of the Canadian Charter of Rights and Freedoms. Specifically the individual rights guaranteed by Sections 8 and 9 of the Charter are clearly infringed and denied and on a case by case analysis are violations of Sections 2, 7, 10 and 15 of the Charter.
4. The manner in which this so-called form of “community engagement” is deployed warrants scrutiny by the Board. We have authenticated reports from individuals who state that when they decline to either provide identification or provide the information set out in Form 208 as in the absence of special circumstances is their absolute right to do, officers then resort to illegitimate ruses and stratagems such as the following:
a) Officers falsely state that they are involved in a criminal investigation and that the individual matches the description of the suspects. It should be noted that some officers may wrongly believe that by so stating they bring themselves within the broader scope of “investigative detention” as set out in R. v. Mann.
b) Officers attempt to circumvent and nullify the individuals assertion that they do not wish to identify themselves or provide the Form 208 information by implicitly threatening remarks such as:
i. What are you trying to hide!
ii. What do you have in your pocket!
iii. Do I have to take you to the Police Station?!
c) Officers engage in “pat down searches” of the individual which are clearly unlawful.
5. The approaching and stopping of persons without lawful cause followed by a request or demand for identification and answers to the information sought by Form 208 clearly constitute “detention” within the meaning of the Charter of Rights. Such demands or requests for identification and information clearly constitute a “search” within the meaning of the Charter.
6. In the overwhelming majority of cases the persons which the police seek to “Card” are doing nothing that would lawfully warrant such police intervention.
7. Not only is the practice of “Carding” in such a manner an unlawful violation of the Charter, it has resulted in community apprehension, sentiment and fear particularly in marginalized communities which undergo a disproportionate “Carding” presence.
8. Further, individuals who are apparently targeted for “carding” are disproportionally racialized youth. The practice is viewed in these communities as racist policing. Often these are the very communities in which the police seek and need cooperation in the pursuit of legitimate law enforcement and criminal investigation purposes.